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CHAPTER 2: THE SOURCES OF INTERNATIONAL LAW

What sources are

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In the absence of centralized, legislative, executive and judicial structure, there is no

single able to legislate and there is no system of courts with compulsive power to decide
what the law is nor is there a centralized repository of international law.
Thus, there is a problem of finding out where the law is.
Nevertheless international law exists and there are sources where, with some effort, the
law can be found.

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Formal Sources & Material Sources

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Formal Sources can refer to the various processoes y which rules come into existence.
Example:
Legislation is a formal source of law. So are treaty making and judicial decision
making as well as the practice of states.
Material Sources are not concerned with how rules come into existence but rather with
the substance and consent of obligation. They identify what obligations are.
Example:
State practice, UN Resolutions, treaties, judicial decisions and the writing of
jurists are material sources insofar as they identify what those obligations are.
The doctrine of sources lays down conditions for verifying and ascertaining the existence
of legal principles. observable manifestations of the wills of States as revealed in the
processes by which norms are formed. (practice accepted as law.)

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Article 38(1) of the Statue of the International Court of Justice

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Article 38 is primarily a directive of the Court on how it should resolve conflicts brought
before it.
1.

2.

The Court, whose function is to decide in accordance with international law

such disputes as are submitted to it, shall apply:
a. International conventions, whether general or particular, establishing
rules expressly recognized by contesting states;
b. International custom, as evidence of a general practice accepted as
law;
c. The general principles of law recognized by civilized nations;
d. Subject to the provision of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
This provision shall not prejudice the power of the Court to decide ex aequo et
bono, if the parties agree thereto.

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Statement of Sources: Restatement (Third) of Foreign Relations Law of the United

States

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1.

2.
3.
4.

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A rule of international law is one that has been accepted as such by the
international community of states
a. In the form of customary law;
b. By international agreement; or
c. By derivation from general principles common to major legal systems
of the world.
Customary international law results from a general and consistent practice of
states followed by them form a sense of legal obligation.
International agreements create law for the states parties thereto and may lead
to the creation of customary international law which such agreements are
intended for adherence by states generally and are in fact widely accepted.
General principles common to the major legal systems even if not incorporated
or reflected in customary law or international agreements, may be invoked as
supplementary rules of international law where appropriate.

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Custom or customary international law

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Custom or customary international law a general and consistend practice of states

followed by them from a sense of legal obligation.
Material factor how states behave
Psychological or subjective factor why they behave the way they do.

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Material factor: practice of states or usus

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The initial factor for determining the existence of custom is the actual behaviour of states
(usus).
Elements:
1.
2.
3.

Duration
Consistency
Generality of the practice of states

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Material factor: practice of states or usus

Duration vs Generality and Uniformity

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The required duration can be either short or long. An example of customary law that is
the result of long, almost immemorial, practice is the a rule affirmed in
The Paquette Havana. (exemption of fishing vessels from capture as prize of war)
North Sea Continental Shelf cases (duration by itself will not exclude the possibility of a
practice maturing into a custom provided that some conditions are satisfied.
State practice must be extensive and virtually uniform and occurred in such a
way that it shows general recognition.
Duration therefore is not the most important element. More important is the consistency
and the generality of practice.
See Asylum Case (ICJ reports 1950) page 11 to 12 Bernas
Uniformity and generality of practice need not bo complete, but it must be substantial.
See Nicaragua v. United States (ICJ Reports 1986)

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Opinio juris

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Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do.
Opinio juris or the belief that a certain form of behaviour is obligatory.
Opinio juris is what makes practice an international rule, without practice, it is not a law
It should be noted that it is also possible for customary law to develop which will bind only
several states. But the party claiming it must prove that it is also binding on the other
party. (See Right of Passage over Indian Territory (ICJ Reports 1960)

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Dissenting states; subsequent contrary practice

Are they bound by custom?

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Would dissenting states be bound by custom?

Yes, unless they had consistently objected to it while the custom was merely in the
process of formation.
(see Anglo-Norweigian Fisheries ICR Rep 1951)
Dissent however, protects only the dissenter and does not apply to other states.
Moreover, a state joining the international law system for the first time after practice has
become law is bound b such practice.
If a contrary practice gain acceptance, it might instead become a law. (Fisheries
Jurisdiction Case (ICJ Rep. 1974)

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Evidence of state practice and opinion juris

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Various forms of evidence may point to state practice. These can be:
a. Treaties;
b. Diplomatic correspondence,
c. Statements of national leaders and political advisers; and
d. Conduct of states.
The existence of opinion juris is a matter of proof. The burden of proving its existence
falls on the state claiming it.
(See Nicaragua vs. United States, passage on bernas book pg. 14)

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Instant custom

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What is referred to as instant custom is not the product of constant and prolonged
practice. Rather it comes about as spontaneous activity of a great number of states
supporting a specific line of action.
Example:
In the aftermath of the attack on the World Trade Center in New York, a
coalition of forces arose in a matter of months supportive of the action taken by the U.S.
against Osama Bin Laden
At least one writer has suggested that his united action may have given birth to instant
customary law classifying the attack as an armed attack under Article 51 of the UN
charter justifying collective self-defense. (Note: peculiarity of a non-state organization).

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Usus and opinion juris in Humanitarian law: The Martens Clause

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Refers to a paragraph found in the 1899 Hague Peace Convention.

Until a more complete code of laws of war has been issued, the High Contracting parties
deem it expedient to declare that, in cases not included in Regulations adopted by them,
the inhabitants and belligerents remain under the protection and the rule of the principles
of the law of nations as they result from the usages established among civilized peoples,
from the laws of humanity and the dictates of the public conscience.
Fyodor Marens (Russian Publicist)
The clause found its way to the 1949 Vienna convention and the First additional protocol
of 1977.
What the clause does is to put the laws of humanity and dictates of public conscience on
the same level as usages of states.or usus thus even suggesting that even without
practice there can emerge a principle of law based on the laws of humanity and dictates
of public conscience

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Treaties

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Treaties determine the rights and duties of states just as individual rights are determined
by contracts. Their binding force comes from the voluntary decision of sovereign states to
obligate themselves to a mode of behaviour.
There is a distinction between contract treaties and law making treaties but all treaties
must be observed anyway under the principle of pacta sunt servanda. (agreements must
be kept)

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Treaties and Custom

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Intention of the parties dictates whether or not treaties can override customs.
Evidence of customary law, if the treaty is intended to be so

If the treaty comes later than a particular custo, the treaty should prevail.

Where the custom develops after a treaty, the rule is not clear.
o
Logical that later custom should prevail as it is the expression of the
will, however;
o
Sometimes there is reconciliation between the treaty and the custom.

See Wimbledon Case PCIJ 1923

See Anglo French Continental Shelf case (1979)

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General principles of law recognized by civilized nations

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Restatement also refers to this as general principles of law recognized by or common to

the worlds major legal systems.

They may in a sense be said to belong to no particular system of law but are
evidence rather of the fundamental unity of law.
The Restatement refers to them as supplementary rules of international law.

These may be found in judicial decision and the teachings of the most highly
qualified publicists of the various nations which the Statute refers to as
subsidiary means for the determination of rules of law.
See 1928 Chorzow Factory Case
it is a general conception of law that every violation of an engagement involves an
obligation to make reparation.
See also Barcelona Traction Case

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Judicial decisions

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Article 38 includes Judicial decisions but this is made subject to Art. 59 which states:

the decisions of court have no binding force except between the parties and in
respect of that particular case
Decisions do not constitute stare decisis, however, the decisions of the ICJ are not only
regarded as highly persuasive in international law circles; they have also contributed to
the formulation of principles that have become international law.

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The teachings of highly qualified writers and Publicists.

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In common law jurisdictions, there is reluctance to use them.

In civil law jurisdictions, there is more ready reference to writers.
The ICJ is generally reluctant to refer to writers but they are often taken into
consideration.

Publicists are institutions which write on international law. They also play a role. The
more significant ones are:
a) The International law Commission (an organ of the UN);
b) Institut de Droit International;
c) International Law Association (a multinational body);
d) The (Revised) Restatement of Foreign Relations Law of the United States; and
e) The annual publication of the Hague Academy of International Law.
Institutions are government funded so there can be bias.

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Equity

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The Permanent Court of Justice had occasion to use equity as a source of law in the
case of Diversion of Water from the Meuse (Netherlands v. Belgium). See case.
Equity, when accepted, is an instrument whereby conventional or customary law may be
supplemented or modified in order to achieve justice. It has both a procedural and
substantive aspect.
Procedurally, it means a mandate given to a judge to exercise discretion in order to
achieve a determination that is more equitable and fair.
Different kinds of equity are distinguished:

Intra legem (within the law) that is the law adapted to the facts of the case.

Praeter legem (beyond the law), that is, it is used to fill gaps within the law.

Contra legem (against the law), that is, a refusal to apply the law which is seen
as unjust.

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Other supplementary evidence

UN Resolutions and Soft Law

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UN Resolutions
Declarations of legal principles and resolutions by the United nations are generally
considered merely recommendatory.

But if they are supported by all the states, they are an expression of opinion
juris communis. (Weaker nations think they should have the force of law.)
Soft Law

It is not included among the sources.

Sometimes called non-treaty agreements.
They are not concluded as treaties and therefore not covered by the Vienna
Convention of the law of Treaties.
Other sources of soft law are:
a) Administrative rules which guide the practice of states in relation to
international organization.
Often states prefer non-treaty obligations as a simpler and more flexible foundation for
their future relations.

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